Panel advises slashing list of capital offenses

Report also urges exempting mentally ill

COLUMBUS — The ultimate punishment under Ohio law would be reserved for the “worst of the worst,” and mentally ill people could not be executed if recommendations from a state task force become law.

That’s a big “if.”

The panel, named two years ago by Ohio Supreme Court Chief Justice Maureen O’Connor and the Ohio State Bar Association, also calls for taking the death penalty off the table simply because a death occurred during the commission of a felony, such as a robbery, kidnapping, and murder. The task force wants to open to public view elements of the state’s clemency process that now occurs behind closed doors.

Some of the recommendations would require legislative action, far from a sure thing. Others could be accomplished through change in judicial rules adopted by the Supreme Court.

The death penalty itself was never on trial. A moratorium on carrying out executions during the review process was also not considered.

Instead, the task force concentrated on the application of capital punishment in Ohio, when it would and would not be appropriate, the long-term preservation of evidence, and racial and geographic disparities in its implementation.

The 22-member task force — consisting of judges, legislators, prosecutors, defense attorneys, and members of law enforcement and academics — was not unanimous in support of all 56 recommendations. A separate dissenting report from some members, in particular prosecutors, is expected to follow.

Highlights of the recommendations include:

● Mandatory recording of interrogations of suspects while in custody.

● Taking the death penalty off the table for someone legally determined to be suffering “severe mental illness” at the time of the crime or at the time of scheduled execution. Court rulings have already found that executing the mentally retarded is unconstitutional.

● Removing the death penalty as an option simply because a death occurred during the commission of certain felonies, such as kidnapping, rape, aggravated arson, aggravated robbery, and aggravated burglary.

● Creation of a Capital Litigation Fund to pay for all costs for the prosecution and defense of capital cases.

● Prohibiting the death penalty in cases lacking biological or DNA evidence, a recorded voluntary confession, a video recording “conclusively” linking the defendant to the murder, or other factors as determined by the General Assembly.

● Prohibiting the death penalty in cases where the prosecutor relied on jailhouse informant testimony uncorroborated by other evidence.

● Requiring the Ohio Parole Board to record clemency hearings and its private interviews with condemned inmates with those recordings considered public record.

State Sen. Bill Seitz (R., Cincinnati), a task force member, said he agrees with most of the recommendations, but he questioned whether some may condemn the report as a whole.

“I come at this from the standpoint of knowing my colleagues in the legislature,” he said. “The minute the prosecutors say we are not for this, it’s not going to happen. ... If you put too many controversial recommendations in here, you’re going to have the whole ... report go into the trash can.”

Chief among his disagreements with the final report is the elimination of “felony murder.”

But that is one of the most important recommendations in the report, according to Ohio Public Defender Tim Young.

“You limit the death penalty to just the most heinous murders,” he said.

A running theme throughout the report was providing “adequate funding” for such costs as public defenders for indigent defendants.

“It impacts both sides,” Mr. Young said. “... The defense has always been underfunded. Almost everywhere in every case there isn’t adequate funding. ... We have long fights to hire experts that are desperately needed. Funding has got to go up significantly.”

Judge Linda Jennings of Lucas County Common Pleas Court, a task force member, said she generally agrees with the report and will not join in the dissent.

“It was difficult, because sometimes we would have discussions about whether or not we should even have the death penalty,” she said. “We knew we could not even consider that. We had to just look at the [American Bar Association] recommendations and see in Ohio where there was a problem and see what we could recommend to make it more fair.”

State Sen. Edna Brown (D., Toledo), who did not serve on the task force, has unsuccessfully sought the end of the death penalty in Ohio.

“Decades of studies have shown that capital punishment is arbitrarily applied, enormously expensive and wasteful, fails to deter criminal activity, and always carries the possibility of sentencing an innocent person to death,” she said. “Unfortunately, the task force was prohibited from exploring abolishment, the only solution that fully addresses these systemic flaws.”